So games that are actually obscene can be regulated.

Okay, so just like movies that are obscene can be regulated.

So... nothing has changed. we just has a justice who believes that games can have 1st amendment protections.

@BmK
> I always thought Scalia was pro-first amendment.

This is of course redundant -- all SCOTUS justices are supposed to be pro-all-the-amendments, plus all the bits before them. His interpretation of the constitution, however, has been unswervingly toward whatever satisfies the extreme right wing, particularly the religious conservatives. This is the same guy who told us that God told him to get GWB elected.

Probably the only justice worse than Scalia is Thomas, the one justice I honestly believe should be impeached, as he doesn't even do his job. He once went an entire session without asking a single question in arguments. But of course he still makes decisions that make Justice Scalia look like Justice Ginsberg.

Yeah, I figured you fell in the “underage” category, and you’re all but confirming it. Nothing against you, but underage children have a different agenda than an adult would when it comes to this debate.

What a copout. I'm an adult, and I agree with Andrew.

Your inability to imagine why an adult would oppose video game regulation is your own problem.

If the government regulated game sales to MINORS, then the stores would NOT decide for the parents — they would decide for the MINORS.

But your position is that regulating video games at the point of sale forces parents to "actually MAKE a decision", which is plain false. Parents can remain as uninvolved as ever. It's just that, instead of the parents, the store is the one that gets to tell the kid: "sorry kid, but you can't have this game".

Meanwhile the kid's parents, oblivious and uninvolved, won't ever find out that their kid is playing Manhunt at their best friend's house.

I haven’t seen any legitimate nor coherent reasoning behind his logic. Actually i’ve seen quite the opposite. It seems very illogical as well as dangerous to restrict the dissemination of ideas, information, messages, viewpoints and opinions to minors. This is because if we do so, then by the time they reach “enter arbitrary age limit for adulthood here” their minds will be a blank and they’ll be unable to deal with the real world as we know it. In essence, it’s an indirect form of mind and thought control by disallowing minors to form their own viewpoints based on uncensored and unrestricted access to free speech materials.

Very well said. It's comforting to know there are still some people out there with a proper sense of morality.

When you mean minors, do you mean just young children? If so i’d say i could agree with that if done properly.

If a very young child is alone at the store with a copy of Manhunt 2 in one hand and $60 in the other, there's something wrong there that has nothing at all to do with the fact that he's holding a copy of Manhunt 2.

As far as I'm concerned, if they're old enough to hang out at the store all by themselves, they're old enough to be sold violent video games.

He's a problem.

Well that's cool, how often do gamers get to chill with Supreme Court Justices?

Despite what he said the only way we would ever find out how the Supreme Court would rule is if they ever had a case, which has yet to happen. They most likely would not hear it anyway.

@ Bedlambob

One problem. There is NO law on the books in America for movies or music, with the notable exception of Porno. Even this guy admits most games don't hit that level. So not only is it a first amendment issue, he just admitted it's a equal rights under the law issue, which is one of the main reasons the state laws keep dying.

Your idea isn't bad, but if it's not applied to all media, it fails. And it'll be a cold day in hell before the Movie industry allows that.

What about the 14th Amendment? That no law should be made that discriminates against a particular kind of speech? That's the one that applies more here, not the concept of having a law, but the concept that this law should apply only to Video Games, whilst deliberately ignoring other forms of Media. There is no reason to single out Video Games, even Judge Scalia knows that, and yet they are still to be discriminated against?

I'm from the UK, I don't have a problem with regulation, it's segregation that pisses me off.

I have no problem with the theory of banning the sale of M rated games to kids. My problem with that idea is when the retailers are subject to fines and criminal proceedings should it happen, as this is something that is incredibly hard to implement.

Underage kids already get their hands on cigarettes, alcohol, pornography, etc through a variety of methods; fake IDs, an older kid buying it for them, simply looking older than the are. They will continue to do this for video games, and it is unfair for a retailer who has been deceived in such a manner to face criminal proceedings due to it.

After all this however, the fact remains that parents are the ultimate factor in what a child does. If a parent is more observant and actually exercises their responsibility and a little guidance, their kid will not do any of the things listed above, no matter how easily it may be for them to get their hands on those products not intended for their age.

I think EZK got it. The judge sounded like he was talking about the equivalencies of strictly adult-only products (ie Porn, AO games, etc.) and not each and every M Rated game, just like not every R Rated movie.

I still don't see the problem with banning the sale of Mature games to minors....been standard in the UK for years, probably why people can't gain nearly as much political capital over here as they can in the US.

But my opinion is my own.

@Canary Wundaboy Well so many factors.....one we self regulate it already. Two ESRB is a private organaztion. The Goverment can't adopt a private organaztion as "law" or whatever....three, alot of people are worried it would cause a snowball effect and set preceedents.

"Oh hey if we can regulate this....why not regulate that as well?...Then what about that?...Oh this too."

See....regulate one thing that's free speech and suddenly they might be able to regulate more and more and more....

So does this mean a back door could be found to ban games from adults here? :'(

Simplest and coolest truth:
if videogames are protected by the first amendment, any laws to stop their distribution are............... violating the first amendment.

how hard is that to understand?

It's a bit of a stretch to interpret this as "at least one of the nine justices [himself] would affirm state laws that ban the sale of mature-rated games to minors." This is taken from a casual conversation with no detailed review of the cases at hand. A slightly more careful look at the laws that have been struck down reveals them to be quite flawed in a number of ways.

For any of this legislation to be ruled constitutional, it would have to demonstrate that particularly violent games have no scientific, educational, or moral benefit to minors, which is a tough call when you lump six-year-olds in with seventeen-year-olds. Even the hand-eye coordination of some games could potentially count as "educational benefit," and plenty of seemingly amoral games could be construed as moral benefit if they can be taken as satire.

This legislation would also likely need to pass strict scrutiny, which would mean that it would have to demonstrate that violent video games do in fact harm children, the proposed legislation would in fact protect children from such games, and that less restrictive avenues have already been exhausted. This is a long shot still: Judge Kennelly in Illinois noted that most of the games to be restricted are being bought by parents already, and that even more accessible visual media (movies, music) were omitted from the law, suggesting (I'm paraphrasing) that the law was never even meant to do what it proposes. Plus, the research on video game violence is nowhere near conclusive enough to suggest that minors (as old as 17) are actually being "harmed."

Perhaps most pertinent, there are plenty of less restrictive avenues still available that would restrict children's access even more effectively, such as more widely publicized and carefully designed parental controls on consoles. How about letting parents lock out games based on content descriptors, rather than just based on rating?

The problem here is not just whether games deserve this treatment, but why games are being singled out among all media. The answer to that is not that games are more violent or more powerful in their effects, which are far from being demonstrated scientifically. The answer is that lawmakers still don't understand how games work, and many new media come under disproportionate scrutiny until people calm down. Let's not see this medium crippled by the institutional vestiges of moral panic the way we've seen with other media, or in other nations.

The issue isn't whether video games are protected by the First Amendment. They are. Even so, the government can regulate protected speech--but only if the law passes "strict scrutiny," which is the hardest constitutional test a law can get put through.

Basically, any content-based regulation of speech has to (1) serve a compelling state interest, (2) be necessary to serve that interest, and (3) be narrowly tailored to serve that interest. So the issue that would go to the Supreme Court is not whether video games are protected speech, but whether any restriction on distributing games with a certain type of content to minors does all of those three things.

There is also another constitutional problem with these sorts of laws that has nothing to do with the First Amendment. These laws restrict (and often criminalize) the sales of video games based on a ratings-system put forth by a private entity, the ESRB. This arguably violates various legal doctrines that prohibit the government from delegating its authority to private actors, especially laws that "punish" those who disobey.

"The British Board of Film Classification is an independent, non-governmental body, which has classified cinema films since it was set up in 1912, and videos since the passing of the Video Recordings Act in 1984."

So it's independent, but not private sector.
Hope that clears it up.

Is there a country out there with free media and no christians? I think its time to move.

"it would simply prevent minors from buying the games on their own"
...or retailers can keep do what they have been doing which is to have a STORE POLICY about not selling to minors.

@Zerodash
You don't need to be Christian to want to legislate morality.

Also, I'd like to add to my statement. Currently they like to whip out the AO rating to easily. If you don't want to rat the Saw series, each and every one of them, as Rated X, then you CAN'T rate Manhunt 2 as AO. Interactivity be damned, those movies were gross.

I really don't see any problem with a law forbidding the sale of M rated games to minors. Now I don't think such a law should make doing so a criminal offense. Still, as Justice Scalia pointed out- we have long had both legal precedent and cultural normative standards holding that it is perfectly reasonable for the governing bodies of a society to restrict minors' access to certain materials which have been deemed to be detrimental to their well being.

I think that such a law would most likely be very similiar to the prohibition on selling pornography to minors. Not because games are pornography but because we have the same concerns with minors' access to materials which may be harmful to them. I really think that a law like this is inevitable and would really be beneficial to the industry because it would shift blame away from the industry itself and on to retailers who defy the law and sell mature rated games to kids.

And as for the few people who think this is a free speech issue- it isn't. Nobody is restricting the right of the industry to produce whatever kind of games they want. Rather such a law would provide a penalty for minors purchasing M rated games and for retailers who knowingly sell such games to minors. There isn't any restriction of speech there.

Such a system would get abused so quickly.

@Anonymous

I agree with the idea that such a law would be fair but only if it were applied to media without prejudice or favour and it is there where the problem arises. The 'evidence' that Video Games are detrimental to people's wellbeing is actually less confirmed than similar evidence regarding TV and Movies, and yet not one finger has been raised to implement legally enforced ratings for them. Whilst yes, I can understand the desire for ways to stop minors from accessing violent images etc, it is a constitutional issue, just not the Amendment you are thinking of. To create a law that affects the Video Game industry only with no supporting evidence to suggest that they require special sanctions over Movies or other forms of Media is discrimination against a particular form of speech.

As was mentioned earlier, in order for such a law to pass, it would have to go through an extremely thorough review, and I think unless the whole system is dealt with in one go, even if the Law doesn't butt against the First Amendment, it will, with the current 'evidence' crash head first into the 14th.

I have no problem with regulating the sales of M games to people under the age of 17 (although parents will still keep buying GTA for their little darlings), but I do not know that there should be a law about it when there are not laws for other forms of media with the exact same content.

A ten year old can walk into any Borders and legally purchase any movie, cd, or book in there regardless of content (unless that particular Borders enforces a store policy against such sales) and there are no laws in place to limit that, so why should games be different? \

If you want to put laws in place then they need to be placed fairly. Video games should not be singled out, you need to place the same rules on music, movies, and books. If you find laws limiting the sales of those forms of media offensive, then maybe you should review your thoughts about limiting the sales of games as well.

The major problem i see in Scalia's reasoning is that fact that Pornagraphy is judged as an "unprotected" form of speech and THAT is the reason why they are able to regulate it. Porn is declare obscene and obscene material is seen as being unconstitutional. Because it is not free speech they could completely ban it if they really wanted to; they just chose to let adults have the porn and regulate it to minors.

To use Scalia's reasoning against video games, the ONLY way they could be regulated just like Porn is, is if video games were deemed an unprotected form of speech; just like porn. However, it has already been deemed that video games ARE free speech, so Scalia's logic for precedent falls flat on it's face... in a sense, it sounds like he's contradicting himself

@Bedlambob
i'm not sure, but i think it was said that one of the amendments to our constitution (14th?) prevents giving an independent organization the power of law. Because it is not controlled by the gov't and thus completely out of the hands of the people, an independent organization could take on many actions that the people would not support and there isn't much that can be done; as opposed to gov't organizations, where the gov't can kick out anyone who is not doing what they are supposed to do

Take the Manhunt 2 fiasco going on in the UK for instance. Right now, the BBFC is pushing to let the game go unrated and as such BANNED in the UK (which they have done to a few other movies and games). The People did not elect the BBFC members, and the gov't did not appoint them, and yet the fate of Manhunt 2 is subject to their PERSONAL opinion. Does that sound right? i mean atleast when a poltican does something based on law he has the right to do it based on the fact that he was elected by over 50% of the poeple in which he represents; so he in some sense reflects their opinion... and if the poeple don't like it, they can always vote him out. Really, if the wrong people got put on to the BBFC rating board, it's entirely possible that they could raise their standards on Media and you could see more bans

Hell, and let us not forget that the UK prime minister is apparently preparing for some kind of crack down on violent video games once that video game report is released... that sounds like it could be troublesome

I am one of those people who believes that treating any form of speech as obscenity is an end run around the constitution -- an excuse for the government to legally violate our free-speech protections. It's the same BS excuse the US government has employed in trying to regulate porn on the Internet, so far unsuccessfully.

It's such a shame that, even in the 21st century, people still subscribe to the notion that obscene speech is particularly harmful to minors. There is no scientific basis for such a conclusion, and it's little more than the secular implementation of faith-based morality.

I'm sick and tired of governments defending "family values" above those of its individual citizens. The purchase of video games is a private and voluntary act, and should not be regulated by the government.

As for Scalia's comments, I'm hoping he's misunderstood the question and wasn't talking specifically about "M-rated games". Few things would be worse for America in matters of free speech than for the ESRB, a private entity, to be granted the power to hand out legally-binding ratings. Sure, regulating games based on their rating is unambiguous with regard to the rating, but it's far too ambiguous with regard to content. No private organization should ever have such power.

Correction:

"It’s the same BS excuse the US government has employed in trying to regulate porn on the Internet, so far unsuccessfully."

Although the government has so far failed to prohibit online speech that is "indecent", which some people call "obscene for minors", legal challenges against online obscenity prohibitions have failed thus far.

Because he didnt say anything about video games not being protected speech doesnt mean that the thinks they are. This Prestia is reading way too much into his remark.

I know for a fact that Scalia has a very narrow interpretation of the 1st Amend (like all conservatives do) that does not include porn, and Im almost positive would not include video games either. He also doesnt believe the 1st Amend applies to the states AT ALL. He doesnt believe in \"incorporation of the bill of rights\" based on the 14th Amendment. He thinks they only apply to the Federal government.

What he did suggest in this statement is that he thinks video games are like pornography, and that should give everyone pause about how a conservative supreme court would rule on video games, and lower federal courts too. That is whats at stake in this election. Getting liberal judges with a more broad interpretation of the bill of rights vs conservative judges.

Again, this guy is reading waaaay to much into Scalias remark. All he said is that yes states could regulate the sale of video games to minors. But that doesnt mean he doesnt think they could censor video games even further. That guy needed to ask him if the thinks video games are protected by the 1st Amend at all (I think he\'d say no). You cant ASSUME that he thinks they are if you didnt ask.

Part of the problem here is lobbying. It's pretty well demonstrated by the fact that Yee's little campaign doesn't pay any attention to movies whatsoever, and guess who he gets campaign contributions from. As for Schwarzengger... well, need I say more. Basically, government cannot regulate Films because a lot of Politicians are financially held by the Movie Industry, and therefore feel they have an obligation to them. Because the Video Game Industry has only just entered the lobbying game, they are still ripe targets (Which, I suspect, is why the ESA has started lobbying).

The sad fact, in my opinion, is that the real cure for the whole 'he who pays most is attacked least' ethos is not for the ESA to start lobbying, but for the whole concept of corporate lobbying and donations to be severely overhauled so that the needs of the United States of America outweigh the needs of a few well funded corporations. At the moment, the targets of these laws are 'people who don't give us money' from the political point of view, and that road leads to somewhere America truly does not want to go.

We had the 'Cash for Questions' dilemma in the UK, where people were paying politicians to ask specific questions in Parliament, but, to be honest, it isn't a scratch on the current lobbying system in the US.

There are times when I honestly do wonder if all this noise is being made in the hopes that the ESA will give them money to salve their offended opinions....

@DigDug,

Agree 100% with your analysis and comments.

"States have a complete right to prohibit any type of entertainment being SOLD DIRECTLY to MINORS based on any criteria."

No. Although the courts have accepted restrictions on the kinds of content that may be sold to minors, the idea that states are free to regulate "any type of entertainment" in this manner is absolutely false.

@DigDug

I agree with your comments and I'm the one who penned the original article. As soon as this article started getting wider attention and prior to your comments, I added an Editor's Note hoping to clarify that much of the latter half of the article was purely conjecture. I did not want people to mistake my opinions for Justice Scalia's.

Did I read into his words too much? Perhaps. But, prior to this question Scalia discussed how he deals with evolving technology as an originalist. In particular he discussed infrared imaging used for home surveillance and its implications under the Fourth Amendment. When I posed the questioned I placed it in this framework; I made sure to note that I was asking the question in the context of evolving technology, specifically "interactive entertainment such as video games," and its interaction with the First Amendment. That is where my conjecture stems from.

That said, I wanted to make it clear that much of this was my own commentary; it's the bread & butter of "blogging." The only definitive answer given by Justice Scalia is that he believes video game legislation could be constitutional and this is enough on its own to generate significant discussion.

Anyway, thank you for your comments. They are greatly appreciated.

This all seems redundant to me. Why do we need a law? Games rated M should not be sold to minors. It says it right on the case. Action should be taken against the retail stores. This has nothing to do with the game industry or the ESRB. Everyone on that side is doing it right. Attack the retail stores for not regulating themselves.

"Why do we need a law? Games rated M should not be sold to minors. It says it right on the case. Action should be taken against the retail stores."

Without a law to back it up, what sort of action do you think people could take against the retail stores?

Aren't M rated games for people 17 years and older while adults are 18 years? Why do we constantly say M rated games are for 18 year olds?

And we do need to get rid of this justice somehow.

@ Adrian Lopez

Any entertainment that is condemned as "obscene" can be regulated for minors. All I'm saying is that no medium is excluded, and that 'free speech' is different for minors.

@BMK

That statement "such expression must be, in some significant way, erotic." was referring specifically to NUDITY, saying that in order for nudity to be specifically barred from minors, such nudity must be erotic in nature. It says nothing of whether violence can be regulated or not, that case involved no statements or decisions on the regulation of violent material.

@Roebuc

Being a part of society means that you will be held accountable for treating children that your responsibility. If I want to beat my child with a baseball bat when they wet their pants, even if they do it in my house, that's a crime.

Now there are different levels of how much should be regulated, but let's be honest and admit that we all have limits on what parents should be allowed to do to their children. Regardless of whether it's "behind closed doors" or wherever the hell it's done.

"Such a holding would not place a ban on parents buying mature games for their children; it would simply prevent minors from buying the games on their own and would leave parents to be parents…"
I completely agree.

Lets rephrase this:

"Such a holding would not place a ban on parents buying The Holy Bible or Holy Koran for their children; it would simply prevent minors from buying the religious books on their own and would leave parents to be parents…”

There are alot of atheist, jewish and muslim parents who don't want their kids getting ahold of The Holy Bible. So a restriction of the sale of the Holy bible to minors is a.o.k then right.

Or how about harry potter books:

"Such a holding would not place a ban on parents buying Harry Potter novels for their children; it would simply prevent minors from buying the Harry Potter novels on their own and would leave parents to be parents…”

There are alot of religious nuts who don't want their kids reading the Harry Potter books so a restriction on Harry Potter books is a.o.k. then.

Now take the Holy Bible and Harry Potter novels and replace it with every single type of Free Speech material that a parent out there would find offensive. Which would pretty much be a blanket restriction on all Free Speech materials to minors.

I believe it's the sole responsibility on the parents to keep their children away from Free Speech materials they don't want them to have, not the nanny-state.

"Such a holding would not place a ban on parents buying mature games for their children; it would simply prevent minors from buying the games on their own and would leave parents to be parents."

Or perhaps it would leave parents to not be parents? After all, if stores are required by law to restrict the kinds of games my kids are allowed to purchase, I won't have to worry about the games they play.

Video game laws are just another step toward parenting on autopilot.

Scalia has been on the wrong (or at least what I consider the wrong) side of a lot of issues lately. Look at his record on some notable cases and note how often he has been the dissenting opinion